The Fortin CANFORGEN

 

On Thursday, 17 November 2022, the Vice Chief of the Defence Staff (VCDS) issued CANFORGEN 164/22 – which can more accurately be characterized as the ‘Fortin CANFORGEN’.  Let’s face it: the 3,000 kg rhino is the room is that the CANFORGEN was clearly issued because Major-General (MGen) Dany Fortin wore his CF uniform to his trial before a civil court of criminal jurisdiction (albeit, to respond to charges that relate to allegations arising within his service and which were investigated by Military Police), and certain people complained vociferously.

As I mentioned previously, it is open to the CDS, or one of the CDS’ subordinates, to issue direction regarding whether a CF member may wear CF uniform in certain circumstances.  Indeed, as has been discussed previously, there were long-standing gaps in the CF Dress Instructions and other policy direction regarding the wearing of CF uniforms.

I’m not overly vexed, or impressed, by a decision to issue direction regarding the wearing of uniforms when attending civil courts.  There are undoubtedly those who will cheer this action as a step toward supporting survivors of sexual violence.  Some people, who were not involved in that proceeding in any way, were very vocal about being offended that a CF member wore his uniform to a court proceeding.  Some were, strangely, particularly focused on the fact that he wore his medals rather than just undress ribbons (more on that later).

Some suggested that this was an attempt by MGen Fortin to influence the judge or as a form of ‘oath helping’.  Frankly, that presents as a rather facile or naïve perspective.  If a judge will be swayed by what an accused – or a witness or a complainant – wears in court, then we have bigger problems than attire to worry about.  And if we are going to start dictating what an accused may, and may not, wear when appearing in court – beyond the direction given to all persons appearing in a proceeding – then we have to ask ourselves if we are going to start dictating what other witnesses wear as well.

I suspect that most sensible people, who were not looking for a reason to be outraged, saw MGen Fortin’s decision to wear his uniform to his trial for what it was.  As with Vice Admiral Mark Norman – who also wore his uniform with medals when he was being prosecuted before a civil court of criminal jurisdiction – MGen Fortin was likely sending a message to the CF senior leadership, and their political masters who were pulling the strings, that he felt that he was being ‘thrown under the bus’ for political expediency.

Similarly, there are undoubtedly those who are outraged about the fact that this CANFORGEN was issued.

I tend to focus on functionality, process, and the impact of policy direction.  And part of that examination is policy intent, which includes the origins or justification for policy direction.

My principal concern is that the ‘Fortin CANFORGEN’ is representative of policy driven by fear.  And that is rarely a reliable or reasonable source or motive for policy that governs the armed forces of a democratic nation that subscribes to the rule of law.

In this Blog post, I will examine some of the more problematic aspects of the ‘Fortin CANFORGEN’, starting with the low-hanging fruit that CANFORGENs are not intended to be used as policy instruments.  We will then examine some of the more problematic provisos in the CANFORGEN, including those that were clearly driven by certain complaints communicated in the news media.

 

CANFORGEN are not Policy Instruments

I’ve said this before.  Repeatedly.

Examining Vavilov’s Impact on Military Administration – Hypothetical Scenario, 24 February 2020

Some Current Thoughts on the CF and the COVID-19 Pandemic, 30 March 2020

Gender Identity in CF Personnel Appraisal, 17 April 2020

Has the Canadian Forces Completely Abandoned the Rule of Law?, 19 August 2020

Some unsolicited advice for the incoming Chief of the Defence Staff …, 7 January 2021

 

Some journalists were even open-minded enough to present my commentary on such matters: Navy’s gender-neutral change to ranks not legally binding, says ex-military lawyer, Murray Brewster, CBC News, 19 September 2020.

The CF keeps using CANFORGEN as policy instruments.  They are not meant to be policy instruments.  As I have mentioned, repeatedly, CANFORGENs represent a messaging system.  It is an appropriate instrument to announce a policy instrument, but appropriate policy instruments are things like Defence Administrative Orders and Directives (DAOD).  Better yet, some policies for the governance of the CF can be, and are, enacted as regulations under the Queen’s Regulations and Orders for the Canadian Forces (QR&O).

I have previously enumerated the problems arising from the use of CANFORGEN as policy instruments.  They are not easily searched.  They are not organized by subject, but are simply published chronologically.  They are not easily accessible by public website.

True, they are published on the intranet system called the Defence Wide Area Network (DWAN), but that is accessible only from a workstation connected to the DWAN.  That limits access to CF personnel and DND employees with access to such a workstation.  They are also accessible from a public ‘application’ or ‘app’; however, those versions are not printable or transferrable via means such as email.

By way of example, in order to hyperlink the version I provide above, I had to: (1) open the Fortin CANFORGEN in the CF ‘app’; (2) screen capture portions of the CANFORGEN; (3) email those screen captures to myself, in order to; (4) print the screen captures; and, (5) then, scan the printed screen captures into a format that would permit me to compile a complete CANFORGEN.

It is entirely possible that my luddite-level skills were part of the problem.  However, the question bears asking: why has the VCDS made it so difficult to obtain and communicate a copy of the Fortin CANFORGEN?

In contrast, the QR&O and DAOD are readily available not only to CF personnel, but to members of the public who may be interested in the content of the regulations and policies that are being promulgated within the CF.  These regulations and policies are ‘searchable’.  They are compiled by subject, keyword, and/or function.  They are easily produced and transferred.

After all, the Fortin CANFORGEN was clearly the product of involvement of certain segments of Canadian society – aka ‘relevant stakeholders’ – and more on them later.

Perhaps more importantly, instruments like the QR&O and DAOD are clear and valid expressions of policy intent.

By way of example, do you recall, Dear Reader, the announcement by the CF – specifically the leadership of the command called the Royal Canadian Navy (RCN) – about the change of rank designations for junior non-commissioned members (NCM) who wear what may be termed a naval uniform?

That announcement was made over two years ago.  The supposed policy change was announced in a CANFORGEN.  Thereafter, various CF personnel, including Military Judges, started using the rank designations Ordinary Sailor, Able Sailor, Leading Sailor, and Master Sailor instead of Ordinary Seaman, Able Seaman, Leading Seaman, and Master Seaman, respectively.

The problem is that the person issuing the CANFORGEN did not have the authority to change those rank designations.  The National Defence Act (NDA) represents Parliament’s exercise of its constitutional powers to enact legislation for the governance of the armed forces of His Majesty raised by Canada (although the NDA still states “… Her Majesty …”).   Section 21 of the National Defence Act (NDA) expressly directs that rank designations may be prescribed in regulations made by the Governor in Council.  The Governor in Council has done so at art 3.01 of the QR&O.  That article has not yet been amended to include the rank designations of Ordinary, Able, Leading, or Master Sailor.

Of course, military leadership assured us that the appropriate regulatory amendments would proceed.

How long does it take to make a simple amendment to art 3.01 of the QR&O?

I am supportive of the change in rank designations, but here’s the thing: either we are a nation governed by the rule of law, or we are not.  Various government officials and senior military leaders insist that we are.  Granted, they seem to be more concerned about when subordinates fail to comply with the rule of law than whether they comply with the rule of law as statutory decision-makers: Rules are for Corporals, Not for Colonels, 1 September 2020.

But here’s an idea: let’s follow the law.

This might seem like a minor point, but it is representative of a larger concern.  I suggest that the reason why many people – including military judges – ignore the actual rank designations that have been established by the Governor in Council at art 3.01 of the QR&O, in accordance with s 21 of the NDA, is because there have not arisen any consequences for the failure to adhere to what has been lawfully directed.  Action without consequence can lead to impunity.  And remember what I said previously about impunity?

(It’s) the Impunity, Stupid, 9 April 2021

 

In the present circumstance, authority to direct dress policy does lie with the Chief of the Defence Staff (CDS), pursuant to his control and administration of the CF (NDA, s 18).  And other officers, like the VCDS, can exercise powers and functions on behalf of the CDS (NDA, s 49) when authorized by regulations or according to the custom of the service.

The dress policy for the CF is directed in a manual with the unsurprising name “A-DH-265-000/AG-001 Canadian Forces Dress Instructions”.  (Again, these are not regulations, despite the frequency with which people refer to them as “dress regs”.)

Even before the Fortin CANFORGEN was issued, there were significant changes made to the CF Dress Instructions.  The anticipated changes were announced with great fanfare in early July of 2022 and CF personnel and the public were told that they would take effect in early September.  These policy changes had been the subject of staff preparation for months.

This announcement was met with glee from some segments of the CF and veteran communities, and with chagrin by other members of the same communities.  It became a bit of a divisive issue (and one, in my view, that was subject to unnecessary hyperbole by many).

My point here is not to delve into whether or not those changes were ‘good’ or ‘bad’.  What I wish to point out is that, even though the changes to the CF Dress Instructions were planned, and announced, months in advance, the Portable Document Format (PDF) of the manual – described as the ‘Alternate format’ on the Government of Canada website – is not available on that website.

Again, how long does it take the government to prepare such a document when it has been planning the changes for months?  I was under the impression that the CF was capable of timely action.  Timeliness is important.

And now we have yet another CANFORGEN that promises eventual amendment to DAOD 7001-0 and DAOD 7001-1.

Why not simply amend those policy instruments?

I suspect that the VCDS used a CANFORGEN for the same reason that CANFORGENs are repeatedly used, improperly, as policy instruments: it’s just so darned difficult to amend the proper instrument or regulation.  After all, then they may have to involve the Department of Justice (DoJ) – or, at the very least, the Legal Services Unit from the DoJ, the DND/CF Legal Advisor.  And civilian lawyers are likely less pliable than the legal advisors in the Office of the JAG (OJAG).  They might also be less responsive.  Again, timeliness is important.

Of course, then the policy makers in the CF would likely not be able to make the policy change effective for 1 December 2022 (Fortin CANFORGEN, para 3).  And that’s an interesting date to choose – 1 December 2022.  Why not effective on 1 January 2023, or 1 April 2023?  Why was it so crucial that the policy must be in place on 1 December 2022?

Oh, that’s right – because this matter is representative of policy-making driven by fear, and MGen Fortin is due to appear before the Provincial Court of Quebec on 5 December 2022.

 

Problematic Provisions

There are at least a couple of problematic provisions in the Fortin CANFORGEN.  The direction regarding the wearing of medals is either ambiguous or represents over-reach in the exercise of statutory powers.  Second, the consultation process for an Officer Commanding a Command, when deciding whether to permit a CF member to wear his or her uniform, includes problematic provisos.

 

Wearing Medals

Para 4 of the Fortin CANFORGEN begins:

THE WEARING OF MEDALS WHILE IN CIVILIAN COURT PROCEEDINGS IS NOT PERMITTED. ANY CAF MEMBER AUTHORIZED TO ATTEND A CIVILIAN COURT PROCEEDING IN UNIFORM WILL WEAR DEU 3, NAMELY TUNIC AND RIBBONS, IF ENTITLED. …

 

Read conjunctively, if narrowly, this directs that the wearing of medals when authorized to wear CF uniform, is prohibited.  The CF member(s) in question are permitted to wear only undress ribbons.  This would be consistent with the direction regarding dress at court martial, which is directed by the Chief Military Judge, not the CDS or VCDS.  [Although, technically, that is direction from the Acting Chief Military Judge, since the Governor in Council has still not designated a new Chief Military Judge since Colonel M. Dutil retired on 20 March 2020.  That’s right, the CF has been without a designated Chief Military Judge for 2 years and 8 months.  But don’t worry, I suspect that the Governor in Council will take care of that designation about the same time that they get around to amending art 3.01 of the QR&O.]

You may recall, Dear Reader, that some people framed their earlier outrage regarding MGen Fortin wearing his CF uniform to his trial by focusing on the medals.  His decision to wear his CF uniform was, according to them, ‘wrong’, but the decision to wear his medals was specifically outrageous.  Presumably, they focused on this point in the face of counter-arguments from those who were not outraged, that had this matter, which allegedly arose in a military context, and had been investigated by military police, been tried before a court martial, MGen Fortin would have been permitted to wear his uniform.

“YABUT”, some outraged people claimed, “he would have not been permitted to wear his medals.” (or words to that effect).  Strictly speaking, he would not have been obliged to wear his medals when appearing before a court martial.

There is a broader, disjunctive interpretation that could be applied to para 4 of the Fortin CANFORGEN.  And that may be the ’spin’ that Dan LeBouthillier, a Public Affairs representative for the CF, gave to the provision when he communicated with the news media who reported on the Fortin CANFORGEN.  He stated: “It also means that the wearing of medals in any court appearance is not permitted.” [Emphasis in original]

I beg to differ.

I question whether the CDS (or VCDS) has any authority to direct how and when a CF member wears his or her medals when out of uniform.  When worn with CF dress, the medals form part of that CF dress.  The CDS (or VCDS on behalf of the CDS) can issue direction regarding how the medals may be worn with uniforms.  But medals do not have to be worn with CF dress.

If MGen Fortin decided to wear his ‘regimental/corps blazer’ with medals – in other words, civilian attire with medals that have been lawfully presented to him – I question whether the VCDS can extend her authority that far.

Certainly, if MGen Fortin were to do so, he would run the risk of being charged under the new provisions for Code of Service Discipline infractions and tried by summary hearing.

And for those of you who thought that summary trials were ‘kangaroo courts’, at least they had a possibility of an election for trial before an actual independent and impartial decision maker – provided that the chain of command and their legal advisor did not apply an incorrect and disingenuous interpretation of art 108.17 of the QR&O: Some Observations on ‘Military Justice’ at Summary Trial – Conclusion, 13 June 2022.

Under the new ‘infraction’ and summary hearing process, if MGen Fortin chose to wear civilian attire with medals, as a means of communicating his concerns about his treatment by senior CF leadership and their political masters, he could potentially be charged under para 120.03(g) of the QR&O: “dresses in a manner or adopts an appearance or demeanour that is inconsistent with Canadian Forces requirements” or para 120.03(i): “otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces”.  The latter provision appears to be dangerously broad and, in practice, I anticipate will be used to punish anything that a CF member’s chain of command subjectively does not like.

And I say that he runs the risk of being charged not because such a charge would be defensible at law, but because, under the summary hearing process, anyone laying a charge or presiding over a summary hearing, has broad leeway to act with impunity, due to diminished oversight from the courts and reduced procedural safeguards for the accused.

True, someone tried by summary hearing could seek review within that process and, if not satisfied with the outcome, may seek judicial review before the Federal Court.  However, that is not the equivalent of an appeal, and it is likely that CF decision-makers anticipate that they will have broad (over-broad?) leeway to act based upon the anticipated deference from the Federal Court.

However, Dear Reader, a discussion about the frailties of the summary hearing process is a topic for another day (and I promise, I will discuss that subject – I have been quite busy lately).

My point is this: the CDS and VCDS can dictate what they wish, within reason, regarding the wearing of CF uniform.  But their authority does not extend to dictating what CF personnel may wear when in civilian attire, including when CF members may wear the medals that have been lawfully issued to them under the authority of the Governor in Council.

Ironically, then, the people who were squawking about MGen Fortin wearing his medals to his court appearances, may have frightened the CDS and VCDS into issuing a policy under which a CF member would be restricted from wearing any uniform, but could still, potentially, wear his medals.

 

‘Relevant Stakeholders’

The second aspect of the Fortin CANFORGEN that I find troubling are the criteria that would purportedly be considered by an Officer Commanding a Command when “… assessing a CAF member’s exception request to wear DEU 3 as opposed to appropriate civilian attire …”.

Most of the criteria are principle-based and are relatively neutral (albeit, weighted in favour of refusal).  However, sub-paras G and H are potentially problematic:

G.  IN CRIMINAL COURT PROCEEDINGS, ANY VIEWS VOLUNTARILY BROUGHT FORTH BY THE VICTIM WHEN POSSIBLE AND AVAILABLE, NOTABLY DUE TO THE VICTIM S IDENTITY BEING PROTECTED; AND

H.  IF ANY, THE VIEWS BROUGHT FORTH BY RELEVANT STAKEHOLDER GROUPS.

 

It is understandable that the views of a complainant regarding the public broadcast of his or her identity may be relevant.  However, protection of identity in public proceedings is principally an issue if there is a publication ban.  And, if there is a publication ban, that is an issue that is properly raised before the court.  Sub-para G is not limited to issues of the complainant’s identity.  Consequently, in practice, I anticipate that this factor will permit the ‘views of the complainant’ to dictate the application of policy.  After all, the CDS and VCDS have already demonstrated that governance of the CF on this issue is driven principally by fear.

Complainants and victims have a direct interest in such proceedings.  Their interests are best expressed to the court with jurisdiction over the matter, rather than the CF chain of command.  I can appreciate that the CDS and VCDS will wish to demonstrate open-minded concern for complainants and victims.  I would tend to draw the line before demonstrating solidarity with complainants in matters that have not yet been adjudicated, as that would tend to signal a prejudgment of matters.  I do not get the impression that the CDS and VCDS would be inclined to draw the same line.

Moreover, the issue of whether the wearing of CF uniform would impact the ‘protection of the victim’s identity’ will often, if not invariably, be moot.  If we examine MGen Fortin’s circumstances – which I contend are directly relevant to the Fortin CANFORGEN – that factor would be moot.

You’ll recall Dear Reader, that, like other General Officers and Flag Officers (GOFO), MGen Fortin first learned of the allegations against him from the news media.  The allegations, investigation, and subsequently, the Criminal Code charge, were reported in the news media, and MGen Fortin’s standing as General Officer were all publicly known.  The reporting on the trial described details that clearly identified the military context of the allegations.  And this reporting was subject to a publication ban regarding the complainant’s identity.  Barring MGen Fortin from wearing his uniform would not have altered any of that information.

To the extent that any criminal prosecution involving a CF member – particularly where the allegations arise in a military context – attracts the attention of the news media, whether the accused wears his or her uniform or not will typically not materially affect the public’s awareness of the context of the allegations or the complainant’s identity.

Consequently, I suggest that the wording of sub-para 5.G. is a dodge.  That proviso is actually included to direct that the Officer Commanding a Command is obliged to consider the views of the complainant – characterized as ‘victim’ based upon the revised definition in the Criminal Code and in order to cast the CF member in a negative light (after all, where there is a victim, there must be an offender) – regardless of the relevance, nature, or merit of the concerns expressed.

I suspect that the VCDS (and her legal advisors) were alive to the likely connotation if the proviso simply read: “IN CRIMINAL COURT PROCEEDINGS, ANY VIEWS VOLUNTARILY BROUGHT FORTH BY THE VICTIM”.  That would signal an abdication of decision-making to the views and preferences of the complainant, not the chain of command.  However, I suggest that this is precisely how that proviso will be applied.  And I would not be at all surprised if various statutory actors would be inclined to solicit or encourage complainants (or victims) to bring forth their views – voluntarily of course.

The more problematic proviso is sub-para 5.H.

Who, precisely, are these ‘relevant stakeholders’?  Who decides their ‘relevance’?  The stakeholders themselves?  Or would it be determined in a matter similar to ‘applause meters’ on late night talk shows: whoever yells the loudest is most relevant?

You’ll likely have detected a hint of sarcasm in my last comments, Dear Reader.  I try to avoid excessive use of sarcasm in this Blog.  However, sub-para 5.H. of the Fortin CANFORGEN merits its use.

Sub-para 5.H. is one of the clearest indicia that the Fortin CANFORGEN is representative of policy-making driven by fear: fear of the news media, fear of special interest groups (some of which have been retained by the DND and CF).  Unfortunately, that policy-making is not driven out of concern for the rule of law.

Remember, Dear Reader, MGen Fortin is one of several GOFO who have been, de facto, if not de jure, relieved from performance of military duty, without the appropriate decision-maker(s) actually resorting to the law governing such decisions (specifically arts 19.75 or 101.09 of the QR&O).   These Ministerial regulations, which are largely similar, enacted pursuant to subs 12(2) of the NDA, provide specific direction regarding the process and grounds necessary to relieve an officer or NCM from performance of military duty.  Based upon what has been reported publicly, none of the GOFO who have, in effect, been relieved from performance of military duty, benefitted from either process.

Moreover, the threshold for such action is not significant, nor is the process particularly complex.  There is no reasonable justification for the CDS (or other relevant statutory decision-maker) to have failed to use one of these processes when GOFO were, in effect, relieved from performance of military duty.

So why were these processes not used?

The likely answer is similar for all questions arising in the context of impunity: because there are few, if any, adverse consequences for the CF statutory decision-maker who fails to comply with the law in these circumstances.  The CDS and VCDS aren’t concerned about failure to comply with legal obligations where there are few, if any, means to enforce their compliance.  They are, however, worried about being criticized – for certain things – in the news media, or by special interest groups who have managed to obtain a platform through the news media.

 

Potential Inequity

Potential inequity also arises not from the content of the Fortin CANFORGEN itself, but from the circumstances under which it will, and will not, be applied.

A little over a year ago, the MND announced that allegations of criminal offences of a sexual nature against members of the CF (regardless of the identity of the complainant) would be investigated and prosecuted by civil authorities: Minister of National Defence Announcement – Sexual Misconduct, 5 November 2021.

Actually, the initial announcement was not particularly clear (and, in light of the gravity of the announcement, one would normally expect a degree of clarity).  Initially, it was uncertain whether the MND meant all allegations of sexual misconduct, or just allegations of a criminal nature.  We did, eventually, receive some clarity: The MND’s New Policy and the Rule of Law, 19 November 2021.

That was a year ago.

Despite the MND’s bold talk, as of the date of the present Blog Post, 19 November 2022, according to the website for the Office of the Chief Military Judge – presided over by the Acting Chief Military Judge – half of the courts martial currently scheduled have been convened to try allegations of sexual assault, under s 271 of the Criminal Code, and prosecuted under the Code of Service Discipline by virtue of s 130 of the NDA.

In other words, some CF members will be permitted to wear their uniform at their trial, regardless of what special interest groups say (for now, at least) while others will be barred from doing so.  And it’s not the accused who determines whether a matter will be tried before a court martial or a civil court of criminal jurisdiction.  That decision is made by CF decision-makers like the officers and NCM of the Canadian Forces National Investigation Service (CFNIS) and the military prosecutors of the Canadian Military Prosecution Service (CMPS) under the direction of the Director Military Prosecutions (DMP).

At least, I assume that those decisions are made by representatives of the CFNIS and DMP.  It is also possible that DMP is left with no option but to proceed, despite the MND’s direction (seemingly given directly to DMP, without the involvement of the JAG), if civil authorities decline to prosecute such matters.  That’s what happens when a Minister of the Crown fails to conduct or direct staff checks with provincial authorities who are under no obligation to do her bidding: Setting Conditions for Failure, 11 July 2022.

And, in light of the veil of secrecy regarding why some matters are prosecuted before civil courts of criminal jurisdiction and others are referred to court martial, for all any of us know, the operative decision-maker is the complainant and DMP is simply implementing the complainant’s wishes.

So, we are left with further inequities.  And, to be quite frank, that is not the most significant inequity arising from the MND’s problematic policy direction.

Let’s put to one side the Orwellian ‘Joint Statement’ from DMP and the Canadian Forces Provost Marshal (CFPM) at the time (which seemed to assert that the Canadian public can have confidence in their respective institutions, even if the MND did not).

Let’s ignore the fact that it appeared that the MND failed to comply with the relevant provisions of the NDA when she seemed to issue direction directly to the CFPM and DMP, even though the NDA clearly requires such direction to proceed from the CDS/VCDS and JAG, respectively, and in writing: The MND’s New Policy and the Rule of Law, 19 November 2021.

One of the prominent inequities that remains is that those CF members who are prosecuted before courts martial for matters arising in their military service benefit from representation, free of charge, from the capable legal counsel from Defence Counsel Services.  Those who, for seemingly arbitrary reasons, are prosecuted before civil courts of criminal jurisdiction for matters arising within their military service, will be obliged to pay thousands of dollars for competent defence: Impact of Access to Justice on Sexual Misconduct Charges, 23 June 2022.

We are still waiting for an explanation regarding how that constitutes fair treatment of CF personnel.  And I suggest that nothing has been done about that inequity because there has not been the same hue and cry raised as was raised when MGen Fortin wore his uniform to his trial.  However, that does not obviate the marked inequity of that arrangement.

 

Conclusion

The governance of the CF is increasingly being directed in order to satisfy select critics, rather than to comply with both the letter and the spirit of the law, and with a view to ensuring fair, transparent, reasonable, and equitable treatment of CF personnel.

I’ll repeat what I stated back on 30 September 2022: Whatever policy the CF develops, regarding any aspect of the control and administration of the CF, must be predicated upon objective, reasoned, and rational analysis.  It must be consistent with the law.  It must be fair, transparent, and equitable.

It must not be driven by fear.  It must not be the refuge of a coward.

And we wonder why the CF faces a retention and recruiting crisis.